Florida’s elective share is the statutory right of a surviving spouse to claim 30% of the deceased spouse’s “elective estate,” regardless of what the will or revocable trust says. The right is found in Part II of Chapter 732 of the Florida Statutes, and the headline number — 30% — comes from section 732.2065. In plain terms: you cannot fully disinherit a husband or wife in Florida just by leaving them out of the documents. They can elect against the estate and take their share anyway.
That single sentence resolves the question for most people who land on this page. But the interesting part — and the part that determines whether a surviving spouse actually receives meaningful money, or whether a planning strategy survives a challenge — lives in the details. I’ve handled both sides of this: the widow who was left a token bequest and didn’t know she could claim more, and the second-marriage client who wanted to provide for children from a first marriage without triggering a fight. Here is how the elective share really works in Florida, and how thoughtful planning works with it rather than against it.
What the Florida elective share actually covers
The most common misconception is that the elective share applies only to assets that pass through probate. It does not. Florida deliberately built a broad “elective estate” so that a spouse can’t be cut out through ordinary will substitutes. Under sections 732.2035 and following, the elective estate is calculated from a much wider pool than the probate estate.
The elective estate generally includes:
- Probate assets — anything titled in the decedent’s sole name.
- Property in a revocable (living) trust. A revocable trust does not shield assets from the elective share.
- The decedent’s interest in jointly held property and pay-on-death or transfer-on-death accounts.
- The net cash surrender value of life insurance on the decedent’s life immediately before death.
- Amounts in retirement accounts, pensions, and similar plans.
- Certain property transferred within one year of death, and property over which the decedent retained the right to income or to revoke.
This breadth is the whole point. Florida saw that a spouse intent on disinheritance would simply move assets into a trust or a joint account, so the Legislature pulled those arrangements back into the calculation. The 30% is then assessed against that combined, statutorily defined number — not against whatever happened to be sitting in the probate file.
Thirty percent — but of a number you have to build
Calculating the elective estate is genuinely technical. Liabilities, valid claims, and certain mortgages reduce it; some transfers are added back; and the order in which assets are tapped to satisfy the share follows the contribution rules in section 732.2075. Two estates that look identical on a bank statement can produce very different elective-share figures once the trust, the joint accounts, and the life insurance are folded in. This is not a back-of-the-envelope exercise, and it is where a surviving spouse most often leaves money on the table by guessing instead of measuring.
The deadline that quietly destroys the right
Here is the part I wish more surviving spouses heard before they came to see me: the elective share is a use-it-or-lose-it right with a hard deadline. Under section 732.2135, the election must be filed on or before the earlier of:
- Six months after the surviving spouse (or their attorney-in-fact or guardian) is served with the Notice of Administration; or
- Two years after the decedent’s date of death.
Miss it, and the right typically evaporates. The court can grant an extension under limited circumstances if the spouse petitions before the deadline runs, but that is a safety net, not a plan. I have seen grieving spouses set the probate papers aside for “a few months” and return to find the window had closed. If you are a surviving spouse and you receive anything captioned “Notice of Administration,” treat it as a clock starting — and get advice promptly, even if you are not yet sure you want to elect.
The elective share is on top of homestead and family allowances
A surviving spouse in Florida often has several distinct rights, and they stack rather than overlap. The elective share is in addition to:
- Homestead protection. Florida’s constitutional homestead rules sharply restrict how a married person can devise their primary residence, and a surviving spouse has independent rights in it (including the option, under section 732.401, to take a life estate or elect a one-half tenancy-in-common interest).
- Exempt property under section 732.402 — certain household furnishings, automobiles, and similar items.
- The family allowance under section 732.403 — money for support during administration.
Because these rights interact, the “right” answer for a surviving spouse is rarely to reflexively claim everything. Sometimes the homestead life estate plus exempt property already exceeds what a 30% election would yield after costs; sometimes electing against the estate is clearly better. Modeling the alternatives is the work. For families that also hold property in other states, the analysis multiplies — a home in New York, for example, carries its own spousal-rights and transfer rules, and coordinating across jurisdictions matters. Firms that handle see the same retained-interest concepts that drive Florida’s add-back rules, which is why multi-state couples should plan the whole picture at once rather than state by state.
Planning around the elective share — lawfully
Clients in second marriages ask me a fair question: “I love my spouse, but I want my children from my first marriage to inherit the business (or the lake house, or the bulk of the estate). Can I do that?” The honest answer is yes — but not by hiding the ball. Florida’s add-back rules are designed precisely to defeat the hide-the-ball approach. What works is consent and substitution.
1. A valid marital agreement
The cleanest tool is a properly executed prenuptial or postnuptial agreement in which the spouse waives or limits the elective share. Section 732.702 expressly allows a spouse to waive elective-share rights, and a written agreement signed by both parties can do exactly that. The catch is that these agreements must be done right — full and fair disclosure (for postnuptial agreements especially), no overreaching, and proper execution — or they get attacked later. A waiver scribbled on the eve of death, with no disclosure and no independent counsel, is an invitation to litigation.
2. Satisfy the share with something the spouse keeps anyway
You don’t always have to take assets away from the spouse to protect children. Section 732.2025 and the contribution scheme allow certain property — including assets in a qualifying elective-share trust that pays the spouse income for life — to count toward satisfying the 30%. Structured correctly, a marital trust can give the surviving spouse a lifetime income stream while ensuring the remainder ultimately passes to the children you intended, all without an election fight.
3. Fund the share intentionally
Some clients simply plan to fund the elective share with liquid, low-friction assets — a life insurance policy, a specific account — so the spouse is provided for and the operating business or the family land passes intact to the next generation. Building the share into the plan, rather than pretending it doesn’t exist, is almost always cheaper than the alternative.
Whichever route fits, the foundational documents have to be sound. A muddled will or an ambiguous trust invites the exact dispute you were trying to avoid. The discipline that goes into a clean — clear dispositive language, proper execution, no internal contradictions — is the same discipline that keeps an elective-share plan from unraveling.
When the spouse and the estate end up across the table
Elective-share fights are some of the more contentious matters in Florida probate, because they often pit a surviving (frequently second) spouse against the decedent’s adult children, with a personal representative caught in the middle. Disputes typically center on three things: whether assets belong in the elective estate, how those assets are valued, and whether a waiver is enforceable. Valuation alone — of a closely held business, of real estate, of an insurance interest — can swing the result by six figures.
If you are a personal representative, understand that you have duties running to the surviving spouse as a potential elective-share recipient, and that getting the contribution order wrong can expose you personally. If you are the surviving spouse, understand that the burden of moving — and the deadline — is largely on you. Either way, this is litigation-adjacent territory where early, accurate accounting matters more than emotion.
The bottom line for South Florida families
The elective share exists for a reason: Florida has decided, as a matter of public policy, that a marriage shouldn’t leave one spouse destitute because the other signed the wrong paperwork. For a surviving spouse, it is a powerful floor — 30% of a generously defined estate — but only if claimed in time. For the planning spouse, it is not an obstacle to route around in secret; it is a known quantity to design with, using waivers, marital trusts, and intentional funding.
Whether you’re a recently widowed spouse trying to understand your rights, or a remarried client trying to be fair to both a spouse and children, the move is the same: model the numbers before you act, and put the strategy in writing the right way. Our team handles Florida built around exactly these scenarios. If you want help drafting or reviewing your wills and trusts, navigating Florida probate, or evaluating an elective-share claim, reach out before the clock runs out.
This article is general information about Florida law, not legal advice, and does not create an attorney-client relationship. Elective-share calculations are fact-specific; consult a Florida attorney about your situation.
Frequently Asked Questions
How much is the elective share in Florida?
Under Florida Statute 732.2065, the elective share is 30% of the decedent’s ‘elective estate.’ The elective estate is broader than the probate estate and includes revocable trust assets, jointly held property, pay-on-death accounts, certain life insurance, and retirement accounts — so the 30% is measured against a generously defined pool, not just the probate file.
What is the deadline to claim the elective share in Florida?
Under section 732.2135, the election must be filed by the earlier of (1) six months after the surviving spouse is served with the Notice of Administration, or (2) two years after the decedent’s date of death. A court can grant a limited extension if the spouse petitions before the deadline, but missing the window usually forfeits the right.
Can a revocable living trust avoid the Florida elective share?
No. Florida deliberately includes revocable trust assets in the elective estate, so funding a living trust does not shield property from a surviving spouse’s elective-share claim. The same is true of most joint accounts and pay-on-death arrangements.
Can a spouse waive their Florida elective share rights?
Yes. Section 732.702 allows a spouse to waive or limit the elective share through a valid written prenuptial or postnuptial agreement. The agreement must be properly executed and, particularly for postnuptial agreements, supported by fair disclosure to be enforceable; a waiver obtained through overreaching can be challenged.
Is the elective share in addition to homestead and family allowances?
Yes. The elective share is separate from and in addition to Florida homestead rights, exempt property under section 732.402, and the family allowance under section 732.403. Because these rights interact, a surviving spouse should model the alternatives rather than automatically claiming all of them.
